Private Law Adoption in Tennessee

 Are you hoping to adopt a baby in the state of Tennessee but finding yourself a little bit confused around the state law that applies to you? Whether you're working with an adoption agency, or trying to privately adopt a baby, maybe through self-matching? Well then stick around because today we're having a conversation with Jenny Hall.  Jenny is a licensed adoption attorney in the state of Tennessee. And she's going to walk us through the entire process from start to finish.  If you haven’t already done so, please take just a moment to subscribe or follow the podcast, and if you’re loving the content you are hearing, I sure would appreciate a rating and review as well.  All right, let’s just dive right into our conversation with Jenny.

AMANDA:  Thank you so much for joining us today, Jenny.  Welcome to the show.  

JENNY:  Thank you.  

AMANDA: We are super excited to have you here to talk a little bit more about adoption law in Tennessee today. Do you mind first starting by sharing a little bit more about yourself with the audience?

JENNY:  Sure. My name is Jenny Hall, and I'm an attorney in Tennessee. I've been licensed since 2001. So I'm getting old. My practice is devoted to adoption and surrogacy law. And I love working with families and helping form families and walking folks through the process and being part of that journey.

AMANDA:  That's awesome. You know, I didn't even pick up on the surrogacy part of your area of expertise. We'll definitely want to talk about that as well today. I want to just start a little bit with an overview of adoption law in particular in Tennessee, just so we all get kind of level set on the same page for some of the basic information.

JENNY:  Sure, sure. And I should say, first, I'm sure every attorney tells you this is not, you know, legal advice. This is a very broad brush overview because every situation is different and lots of time where you have different states involved. So I'm happy to talk about it and also happy to talk to folks about their specific situation.

AMANDA:  That is a very good disclaimer. The other disclaimer that I always share with folks as well, is that if you are specifically talking about adoption or surrogacy, you need to talk to an attorney that specializes in that area. Thus, the reason why it's so important to have and in that state, is because each state law does differ. So thank you again for that reminder. But yes, please continue.

Adoption Law in Tennessee

JENNY:  Yeah, absolutely. So Tennessee is a little bit unique in that we require a judicial surrender of parental rights. So many states have what we call a consent to terminate parental rights where typically you meet with a lawyer, oftentimes in the hospital. Sometimes there's a notary, sometimes there's witnesses required, sometimes there's waiting periods. So every state is a little different. But that's the general process in most states. In Tennessee, there is a four day waiting period. So if, for example, the birth mother gives birth on Monday, Friday is the first possible date, we can go before a judge for her to surrender her parental rights. So it is an appearance in front of a judge. It's not in an open courtroom or anything like that. It's usually in chambers or in a conference room, and the birth mother is there. Her lawyer is there.  A lawyer is not required under our law to represent the birth mom. But if you want to work with me, you’ve got to do it. And the reason for that is to protect her to make sure that she understands, and is making a voluntary informed decision. And it also protects the prospective adoptive parents so that she can't come back later and say, I didn't understand or someone pressured me or forced me or, you know, whatever. So it's protection for both parties. And so I do require my prospective adoptive parents to pay for an attorney for the expectant mother or the birth mother. So I will say that the surrender of parents rights, perhaps because it's such a sort of formal proceeding in front of a judge, it's very unusual that birth mothers revoke their surrender. At that point, we're, you know, close to a week out, we've gone in front of a judge, the baby is placed immediately from the hospital with the prospective adoptive parents. But she does have three judicial days or business days to revoke that surrender for any reason.

AMANDA:  So after the appearance with the judge?

JENNY:  Exactly. A lot of folks refer to it as a 10 day period, because you've got your four days and you've got a weekend and you've got your three days. So yeah. Technically, it's, you know, it feels like a very long time for those adoptive parents, that's for sure. 

AMANDA:  In the four day window, just for clarity sake, if baby is born on Friday, do Saturday and Sunday count in that four day window, or does it start on Monday?

JENNY:  That's such a great question. So the four days are calendar days, calendar days. So the weekend does count. And then the three day revocation period is business days.

AMANDA:  Business days, okay. 

JENNY:  Yeah. 

AMANDA:  Okay, so once baby's born at the hospital, is baby staying in the hospital until the four day period? Or is baby discharged at whatever time is appropriate for baby. And the hopeful adoptive family would leave with a document that gives them rights to leave the hospital with baby? How does that part of it work in Tennessee? 

JENNY:  Sure. So we do a lot of prep work before the baby is born typically, unless it's a stork drop, of course. So we'll have a power of attorney in place already, which gives the prospective adoptive parents the right to access medical records, make medical decisions and discharge from the hospital with the baby. So they are typically caring for the baby in the hospital. Most Tennessee hospitals, if they have a room, they're going to give it to the prospective adoptive family. So both the birth mom and the adoptive family have a room so that the adoptive family can bond privately with the baby. The birth mom, of course, gets as much access to the baby as she wants. And that varies widely from person to person. So yeah, the baby discharges from the hospital with the adoptive family.

AMANDA:  Okay. And so at that point, then once baby discharges, you're going in front of you know, the judicial, apologies for the terminology, but you're going in front of the judge and having the kind of the initial meeting there – are hopeful adoptive families present as well as the birth mom, or is it just a procedure or proceeding with the birth mom? 

JENNY:  Yeah. So what happens is the birth mom and her attorney go in first, because she executes the surrender of parental rights. And then the prospective adoptive parents and their attorney go in and speak to the judge privately. They accept the surrender of parental rights, and then they are granted guardianship of the child. So guardianship can be partial guardianship or full guardianship. And that has to do with whether all legal and putative fathers have been terminated. We do have a pre birth, consent to terminate parental rights in Tennessee. So it's certainly possible that the prospective adoptive parents are given full guardianship at that point. We often do partial guardianship too, and then have to go forward with a termination of parental rights against the biological father, if we can't find him or whatever the situation is. 

AMANDA:  Okay. And in that type of situation, how does that typically work in Tennessee, if she identifies him, he can sign ahead of the court procedure is what I'm hearing. But if she does not identify him, is there a particular set of procedures that you must follow in Tennessee?

JENNY:  So if he is an unknown birth father, she will sign a paternity affidavit stating that he's unknown and explaining why he's unknown. So what was going on around that time that ended in her not being able to identify the biological father, and that can be obviously a painful process. And it's also necessary because our judges are going to require it. So if the birth father is unknown, you do not have to terminate his parental rights. He is not considered a legal or putative father that's entitled to notice of those proceedings. He does not meet criteria as someone whose rights need to be terminated.

AMANDA:  Okay, that makes sense.

JENNY:  So the definition of putative father in Tennessee has actually changed over the last few years and It used to be that if a birth mother named that person, then they were by definition, a putative father. And that is no longer the case, we now under our statute require that he take some affirmative action to parent or to state an intent to parent the baby. So that can be something as simple as going to court and establishing paternity, you can do that prior to the birth, you can enter a claim with the putative father registry, you can claim or just state to the birth mother or an attorney or a social worker that you believe you are the biological father.  Doing just that much puts you on that heightened level of being a putative father. But if you do nothing, then you're not entitled to service or notice.

AMANDA:  Okay, that makes sense. Okay, so the hopeful adoptive family is still caring for baby during this time, and then caring for baby through the three business days or judicial days of revocation period after that. And at that point, what happens from there? Once the three days expire? And then also, what happens if she does change her mind in those three days as well?

JENNY:  Yeah, so if she changes her mind, during that revocation period, the baby is immediately returned to her. And obviously, that is a very difficult process. For I would say, for everyone involved. Like I said, before, revocation of surrender is unusual, it's very unusual. And even in those cases, where I have had revocation of surrender, I've even had birth mothers change their mind again. So they bring the baby into their home, they think, I can do this, and then they just don't have the support to make it happen. So rather than place that baby in foster care, we hope that she will place the baby with the prospective adoptive family that had originally been matched with her. I’ve seen that happen. 

AMANDA:  Wow. Yeah, it is. It is very difficult for all involved for sure. So if the adoption plan proceeds as planned, is that the point at which ICPC is involved if you're an out of state hopeful adoptive family? Or is that the point at which you move to finalization, if you're in state? Can you talk about kind of the path forward from there?

JENNY:  Yeah, so let's talk about a Tennessee family with a Tennessee birth mom, first. Tennessee has a six month mandatory waiting period. So you're going to have your post placement supervisory visits during that time. The home study agency is going to provide a court report and the home study to the judge. And, we go to court, usually just within you know, certainly within a month of the six month period, and we finalize the adoption, we get lots of good pictures. And Jenny usually cries and everyone cries. Yeah, it's a really special day. And if it's an ICPC case, if the adoptive couple lives outside of the state of Tennessee, typically we're going to do a choice of law for that receiving state, because Tennessee is so cumbersome, in what we require, with the surrender of parental rights our waiting period our revocation period. A lot of states either don't have a waiting period, or it may be 24 hours or 48 hours, right? It's typically less than four days. And then revocation periods also vary, but sometimes it's irrevocable, right? And sometimes, you know, there may be a period, but a lot of times it's shorter than those three days. So birth mothers typically choose the receiving state because they don't want to go to court. And I can't blame them. I don't want to go to court either for that reason. So it's a pretty difficult process to go to court. Sometimes transportation is an issue, obviously we do our best to get the birth mamas there. Sometimes, if you have someone who may not be a citizen of the United States, you may have a birth mom that has a warrant out for her arrest. You may have a birth mom that was in foster care herself and maybe has some trauma around being in or around a courthouse. You know, maybe her parents were involved with the law, we really don't know, but most people don't have positive experiences in courthouses. So that can be a pretty difficult process for folks. And they typically will choose to meet with an attorney privately and consent to terminate their parental rights under the laws of the receiving state.

AMANDA:  Okay, so you talked about kind of choosing the state law there. So just to be super clear, I want to make sure I ask a couple of questions here. So if I live in Arkansas, and I match with an expectant parent that is in Tennessee, she could choose and we could choose together with our adoption attorneys, each of us, that we want to use the state laws of Arkansas to finalize the adoption. And then everything that you spoke about the revocation, the termination, all of those periods and requirements, then default to Arkansas. Am I interpreting that correctly? 

JENNY:  Exactly. 

AMANDA:  Okay. Perfect. So if we choose the Arkansas law, in that particular example, where a match was made and a baby was born in Tennessee, then do we still go through ICPC and wait for clearance from the State of Tennessee and State of Arkansas before you are allowed to travel back to Arkansas with the baby from Tennessee?

JENNY:  Well so first of all, let me say that you don't have to wait for the revocation period to lapse before you can go through ICPC. Okay, as soon as that surrender is done, and the baby is released from the hospital, both of those things have to happen, because ICPC is going to want the baby's discharge summary. Then you're free to go. You don't have to wait for the revocation period to expire once you get approval from both states to travel home. Remind me of the question now.

AMANDA:  It was just when you could travel home. And I think what we've touched on and demonstrated even in just this example, is the importance of having an adoption attorney, right? Because there are so many different aspects of just light areas of gray or that are really unique to each example, in each situation and you don't want to make the misstep and put the adoption opportunity in jeopardy, because you didn't dot and “i” and cross a “t” properly. And that's where the adoption attorney in those states is really critical.

JENNY:  Yes. So an example of that is in Tennessee, if you have full guardianship of the child, you do not have to go through ICPC. Because those adoptive parents are the guardians, and guardians don't go through ICPC. So typically, in those cases, we have the prospective adoptive parents return to Tennessee to finalize the adoption.  Tennessee is one of the minority of states that allow non-residents to finalize the adoption under some circumstances. So another reason why you need an adoption attorney. It can be complicated.

AMANDA:  It is.  Oftentimes, in my DM there shows up these questions that are random. And I often say listen, I am not the expert to answer and help you here. You’ve got to talk to an adoption attorney. Here are the three questions I would ask, but you need to talk to an attorney.

JENNY:  Often you're gonna need an attorney in more than one state.

AMANDA:  Yes, that is a really great point. And that is something that when you connect with an expectant parent, you can figure that out. But I often caution people that because state laws vary as it relates to support and what defines support and all of that, that the instant you are talking with somebody you want to have someone on basically speed dial of like, Hi, I'm in this situation, please advise me because you could, in a very well meaning fashion put an adoption in jeopardy from the moment go if not following the law to the tee.

JENNY;  Yes. And birth mother expenses are an excellent example of that because some states don't allow birth parent expenses at all. Some states allow them under certain circumstances. Like if you're matched through a licensed child placing agency. Some states require court permission or some states require court permission over a certain amount. And most states have some time period. So in Tennessee, it's 90 days before and 45 days after the birth, or the surrender, that you can provide reasonable actual living expenses. And those living expenses are defined as housing, utilities, food, maternity clothes, obviously, any medical expenses that the baby may have.  We can do transportation as well. But it is limited to those things. And I always tell prospective adoptive families never give anything of value to the birth mother  unless you are working through your lawyer or a licensed child placing agency, either of those folks are trusted people that understand the law and the process. And we have to disclose all expenses to the court and to ICPC. So they all have good methods of tracking that information, making sure you get receipts for everything. But because you're so limited under Tennessee State law, you know, a lot of times, adoptive families want to get a matching necklace or something super sweet. And I have to say, no, you cannot do that, and make sure you blame it on your lawyer. Right.

AMANDA:  That's what I often say. I always tell all the lawyers out there, no offense, but you are there to help protect both of us in this situation. So I'm going to use you as the bad guy here.

JENNY:  Yeah, absolutely. That's what we're here for. Yeah. So yeah, fruit basket, a robe and slippers, you know, we can come up with sweet things to make sure that birth mother knows  we're thinking about her, we love her, we’re grateful to her, we want to support her.  

AMANDA:  Right? That makes sense. Okay, so this has been incredibly helpful just to kind of set the stage for a baseline of understanding.  I'm going to ask a couple of questions. Now, as it relates to self matching, and whether or not independent adoption, self-match, or whatever you want to call it is allowed under Tennessee law.  Can you speak a little bit more to that?

Is Adoption Self-Matching Legal in Tennesse? 

JENNY:  Sure. So self matching is allowed.  We see a lot of sort of extended relationships, so not kinship, or relative relationships, but, you know, my co-worker's cousin's daughter is pregnant. And we've told her about you, and she would love to talk to you, get to know you, and see if this may be a good match. So we see lots of that kind of thing. And those tend to work out pretty well. Of course, just like in any other situation, a birth mom may change her mind. But those are, I would say, low risk of fraud type situations and low risk, both in terms of any kind of financial fraud, as well as any kind of emotional fraud, because of those connections. We do see a lot of Facebook matching as well, which I would say are high risk for both emotional and financial fraud. Sometimes, we've had situations where someone claims to be a birth mother, or an expectant mother, and she's not pregnant. We have situations where she is pregnant, and she has matched with multiple families in an attempt to support herself and her family that she already has, so it's financial fraud. We've certainly seen emotional fraud as well, where pretty significant relationships develop between the person that is claiming that she wants to place her baby and, you know, a very hopeful adoptive family. So those are pretty painful situations. I do recommend that folks use a licensed child placing agency to match unless it's a situation where, you know, there's that good connection.  And I think by definition, there's just some integrity to that. So I handle those types of cases quite a bit. And, you know, I'll handle the Facebook cases. I'm just super honest with folks that it's high risk. And we get proof of pregnancy and we do a social medical history. And we have her sign a power of attorney and we go out and we meet her, we have a counselor meet her. And, you know, we put in place, a lot of times it's through that process, verification, that things start to fall apart, which honestly, you want things to fall apart sooner rather than later if it's going to be a failed adoption. Making sure that  it's an adoption with integrity is part of the process of the match. And so when you work with a licensed child placing agency, they are going to do that, and they are going to support the birth mother, and they are going to make sure that she understands all of her options, including maybe placing the baby with a family member, including maybe placing the baby with someone that lives close to her, maybe placing the baby with someone who's willing to sign a post adoption, contact agreement.. Some birth mothers want a closed adoption and don't want any information or contact. So making our way through all of those decisions and really giving the birth mother  a lot of choices along the way, I think is part of doing what we can to make sure that the adoption is successful. And that everyone has agency in that.

AMANDA:  Yeah, I think it's really important, something you touched on there is making sure that she has the support that she needs, no matter which method of matching you met through, right, whether it be through a cousin or a Facebook or whatever, just making sure that you're giving the appropriate resources that are allowed under law to be provided, as it relates to not just financial services, which is a lot of times what comes to mind first, but also giving those social support services as well. So that way she understands that she does have options, while you may be very hopeful that the option is you, but it is important that she makes a non influenced decision in that and that she feels that she has all the opportunity to do what is right for her and for baby, you know, in that situation. 

JENNY:  Yeah, I couldn't agree more. And I often work with birth mothers that are resistant to counseling at first. And I always tell them, it's not unusual to have an expectant mother want to create distance, emotional distance in that type of situation, because it's very painful to face head on. And I say, Look, let me get you connected with a counselor that I love. And there are several of them in Tennessee that I love and trust. And let's just build a relationship with them.   Let's just make sure that if you decide, when you're in the hospital, that you want them to visit you, that it's not a stranger coming to visit you, it’s someone that you know and respect and want to be with. Maybe you want a counselor to come with you to the surrender hearing, that can be a huge comfort for folks. You know, and then of course down the line, as you start to grieve and mourn and deal with the painful reality that adoption is, that you have that support person in place. And they're really good too. My counselors that I work with are good about connecting to long term sustainable resources. So, you know, making efforts to have sustainable housing, making efforts to get that ID or driver's license in place so that you can get a job, connecting you to Medicaid type of mental health services and case management services. So, really trying to take care of and protect that birth mom and give her the tools so that she can move forward in a positive way. And oftentimes she has children that she's raising. So we want to be really protective. I hope that doesn't sound condescending in any way. But we want to make sure moving forward that she is prepared to manage her situation without putting her and her family at risk of homelessness, for example. You know, getting her drug and alcohol treatment, if she needs, whatever that looks like for her.

AMANDA:  I think that speaks very highly of you and your practice that that is a very important aspect of what you're doing. And that's to me when I am counseling hopeful adoptive families on the process, I tell them like listen, we're forming a relationship for a lifetime. And while that relationship will look different over time, based upon where everyone is in their journey, and their healing journey and all of that, what you ultimately want is a healthy relationship in total, right? So you know, whether you want a healthy, connected relationship, or you're literally having that type of connection afterwards or not, you want everyone to be in as healthy of a spot as you can. So I don't think that sounds condescending at all. I think that that is honestly the appropriate approach because you are making a family dynamic that is different for a lifetime. This is not just a transactional relationship, or it shouldn't be in my opinion.

JENNY:  Absolutely. Yeah. 

AMANDA;  So we've said that self matching is something that hopeful adoptive families can do in Tennessee. I know there are tons of nuances, but one of the questions that I get quite a lot in our community is, is advertising allowed in this state? And what constitutes advertising? Do you mind to touch on a few of the broad strokes there?

Is Adoption Advertising Allowed In Tennesse? 

JENNY:  Sure. So Tennessee does not allow advertising. Facilitators are prohibited. Marketing firms are prohibited. And we see a lot of families that perhaps should have hired an attorney earlier on in the process that get themselves into situations that are then more difficult to handle from a legal perspective. And also more difficult to handle in terms of their risk. So something that I've seen a lot of lately is marketing and advertising agencies that for some reason, it tends to be $15,000, is what they're charging. They are not doing anything to vet, or support the birth mother. They aren't even doing anything to verify pregnancy, they aren't doing anything to identify or make any inquiry into the birth father. So basically, what we have is a situation where we have someone claiming that they're pregnant, and we have their name. And so folks are so so wanting to be parents. And they're getting involved in these situations. And I have seen them work, I have seen them work out just fine. In positive relationships, like you talked about. But that's a really high risk situation. And, I discourage people from pursuing that. So if you can get an attorney on board early, and often, that's what I say. They can help you avoid some of these really high risk situations and set you up for success. 

AMANDA:  Yes.  It is really important that you understand the law and your situation and your state. Right. And that to your point, you're doing all you can to understand the risk and weighing those risks. Right. And so for some people, the risks are, you know, worth it to them. And for some people they aren’t but that's only a question that each individual person needs to ask. But  my counsel, again, is to reach out to an attorney in that state, and ask those questions to them as you weigh those options. Creating a profile and sharing it in a vacuum can end you up in several different areas of risk as it relates to emotional risk, financial risk, and then ultimately, quite honestly, I think the worst is putting that adoption opportunity in jeopardy, you know, should it prove to be a real opportunity? 

JENNY:  And a lot of folks, they get themselves into high risk situations, and they don't realize it, and then they're fully invested in this birth mama and this baby. And when I say invested, I primarily mean, emotionally invested. I mean, this is their child in their mind. And so it's an incredibly painful and vulnerable situation when that doesn't work out. 

AMANDA:  This has been incredibly helpful. Are there any other things about the adoption process in Tennessee in specific or in general, that you think it's really important for hopeful adoptive families to kind of keep in mind as they start into this journey or walk along if they're further along in their journey?

JENNY:  I think I would at least mention Tennessee, I think it was in 2018, enacted a statute for post adoption contact. So it's a legally enforceable agreement, you don't have to have one, but we often do them as a way of being fully transparent with both parties about what their expectations are. And oftentimes, you know, when I represent birth mothers, I always tell them, this is your one chance to get in writing. And that you know, what the expectations are, that you're gonna get photos, that you're gonna get updates that you may even have in person visits, what that's gonna look like as the child gets older, and a lot of times, it'll be a staggered type of contact. So, the first year, you're going to get lots of pictures, right, because they change so much. And then as they get older, they're just so involved in baseball, they can't do as much. So we account for that as the child develops throughout their lives. And we're really big on, including birth parents in contact and having as much as you can, because it's good for the triad, right? It's good for the birth mama, it's good for the child, and it's good for the adoptive parents. And taking away the stigma and taking away the secrecy around it is a really positive thing for kids. So we do have those post adoption contact agreements, I will say that my experience is that adoptive parents generally want more contact, than they're able to get from those birth parents. So, that's how it plays out a lot of times, but it is enforceable. And so there's a whole process of going through mediation and getting a psychological assessment, and then getting to a judge, if you need to enforce that contract.

AMANDA:  Oh, wow. That's really interesting. I need to do some more research on that to understand if that's something in other states as well. That's the first time I’ve heard about that.  Well, thank you so much, again, for your time today, Jenny. And we will include your information in the show notes. So wherever you're watching or listening to this video, you'll be able to quickly be able to find Jenny but Jenny, do you have a particular spot where you want them to come find you? Should they have a question about Tennessee law?

JENNY:  Sure. I would say go to www.adoptmidtn.com. So I'm in Nashville. So we want you to adopt in Middle Tennessee.

AMANDA:  Awesome. Well, again, thank you so much for your time and expertise. And in sharing that with us. We appreciate all you do for our adoption community.

JENNY:  Well, thank you so much for having me. It's been an honor to be here.

AMANDA:  Wow, wasn't that an amazing conversation? We are so lucky that Jenny took her time to share with us an overview of the adoption law  in Tennessee. Not only is she knowledgeable, but she really broke it down in a way that we can all understand. And I don't know about you, but Jenny is totally my new best friend. She teaches us all the things as it relates to adoption law and Tennessee, and I know we forgot to talk about surrogacy law, so I'm promising you another episode. She's already agreed to it. So we can talk about surrogacy law in Tennessee. If you haven't already done so please find her contact information where you're listening or watching this video and reach out to her if you're looking to adopt a child in Tennessee. Remember, anything's possible with the right plan and support. We're all together stronger as a community. We work together. I'll see you soon friend

Disclaimer: The information contained herein is not to be considered legal advice. We are not attorneys. Should you wish to hire the attorney mentioned in this post, please contact them directly.

Hi, I Am Amanda

I am an adoption profile expert on a mission to teach you how to adopt and help you create and share your family's story more affordably!